A Delhi Court has recently held that since there is no statutory exemption for journalists, they can be compelled to reveal their “sources” to investigating agencies if the disclosure of the source is essential and vital to the investigation proceedings.
Chief Metropolitan Magistrate Anjani Mahajan of Rouse Avenue Courts vide order dated January 17, 2023, rejected the closure report filed by the Central bureau of Investigation (CBI) as they had chosen not to take the investigation to its logical conclusion owing to the leak of the initial report.
Facts of the case: The CBI had conducted a preliminary enquiry into the assets/wealth acquired by Mulayam Singh Yadav and his family members as directed by the Supreme Court. Accordingly, a status report based on the evidence collected was prepared and placed in two sealed cover envelopes before the Supreme Court and a day before the final hearing before the court, the Times of India (New Delhi) published a news article captioned “CBI may admit Mulayam was framed-DIG’s internal note says agency had not verified in PIL”. This news was also aired on Star News and CCN-IBN.
The CBI thus filed an FIR under sections 120B read with 469, 500 and 471 of the IPC against unknown persons for preparing a fake and fabricated report to tarnish the reputation of CBI. It was alleged in the complaint that these unknown persons during the year 2008-2009 entered into criminal conspiracy and with the intent to commit forgery for purpose of harming the reputation of the CBI and CBI officers, used as genuine, a forged document, printed/aired false and fabricated news in newspapers/on TV channels. It stated that they surreptitiously collected some documents relating to the enquiry conducted by CBI.
Further, defamation cases were also filed against the newspaper and news channels.
Sources of journalists
Coming to the point of journalists and their sources, the court held,
Merely because the concerned journalists denied to reveal their respective sources, as stated in the final report, the investigating agency should not have put a halt to the entire investigation.
The court while observing that there is no statutory exemption in India to journalists from disclosing their sources to investigating agencies, held that “investigating agency can always bring to the notice of the concerned journalists the requirement of disclosure of the source being essential and vital to the investigation proceedings”. Further the court also pointed out that the CBI was well within its power and was fully equipped under IPC and CrPC (section 91) to require the public persons to mandatorily join in an investigation where the investigating agency is of the opinion that such public persons are privy to any facts or circumstances pertaining to the case under investigation and public persons are under a legal duty to so join the investigation.
17. Further enquiry is required to be conducted from the concerned journalists on the aspect of their respective source from whom they received the purported impugned forged documents which became the basis of their respective news items
The court also said that investigation is “required to be carried out by the CBI on the modus operandi adopted by the culprits for gaining access to/obtaining the official documents including probing involvement of any insider in the acts alleged and preparing the alleged forged 17 pages review note.”
The Delhi Court’s order may be read here:
Other Instances of Court Interpretation
Bengaluru
On January 5, Bengaluru Police issued a notice to founder and editor of news portal, The File, G.Mahantesh as it had published to an e-office file noting of the Karnataka Education Department. The Bengaluru Cybercrime Police asked Mahantesh to reveal the source of the document on which the story was based along with the identity, name, address and ID card of the source, reported LiveLaw.
The file pertained to the reinstatement of an accused in the teacher recruitment scam as managing director of the Karnataka Text Book Society.
Delhi High Court’s take
In Jai Parkash Aggarwal vs Vishambhar Dutt Sharma 30 (1986) DLT 21, the Delhi High Court held that “Press does not have an absolute privilege not to disclose the source of information on the basis of which the news item has been published.” (para 5)
However, it also held that journalists neither have absolute immunity nor any obligation to disclose their source.
The court held thus,
Before the Court directs the disclosure of source it must satisfy itself that it is in the nature of justice and is not against the public interest It will necessarily depend on the nature of the case and the offending item of the news published. (para 5)
Supreme Court’s take
In October 2021, a bench led by CJI NV Ramana in Writ Petition (Crl.) No. 314 OF 2021 (order dated October 27, 2021) observed that an important and necessary corollary of freedom of press is to ensure the protection of sources of information.
40… Protection of journalistic sources is one of the basic conditions for the freedom of press. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest.
In the order, the court gave due regard to the importance of the protection of journalistic sources for press freedom in a democratic society. While referring to the snooping of Pegasus software it said that it could have a potential chilling effect. The court’s observation cannot be taken as obiter dictum since the same was essential to the final decision which was to set up a technical committee to investigate the use of Pegasus upon certain individuals including journalists in the country. The petitioners in the case had alleged that Israeli-origin malware, Pegasus was used to target those who were vocal critics of the central government.
Press Council Act
The Press Council Act, section 15, speaks about the protection of journalistic sources. However, the same is with regards to any inquiry that is being made by the Press Council itself. Section 15 vests in the said Council the powers of a civil court while trying a suit under the Code of Civil Procedure. However, subsection (2) of section 15 states thus,
(2) Nothing in sub-section (1) shall be deemed to compel any newspaper, news agency, editor or journalist to disclose the source of any news or information published by that newspaper or received or reported by that news agency, editor or journalist.
Thus, while it would wrong to say that journalist have no statutory sanction to protect their sources, the same is only in the context of an inquiry by the Press Council of India
Law Commission Report
There was the 93rd Law Commission Report titled “Disclosure Of Sources Of Information By Mass Media” released in September 1983 headed by Justice KK Mathew. The commission had recommended insertion of an exception in the Indian Evidence Act:
“No court shall require a person to disclose the source of information contained in a publication for which he is responsible, where such information has been obtained by him on the express agreement or implied understanding that the source will be kept confidential”.
Explanation.–In this section»-
(a) ‘publication’ means any speech, writing, broadcast or other communication in whatever form, which is addressed to the public at large or any section of the public.
(b) “source” means the person from whom, or the means through which, the information was obtained”.
The Commissions also opined that the matter should be left elastic, by vesting in the court a discretion in the matter. It said that the court, in each case, can balance the need to protect confidentiality of the source of the information against the interest of justice (general consideration), demands of national security, prevention of disorder and crime
International Courts
In Goodwin v. United Kingdom [Judgement of March 27, 1996, 22 EHRR 123] the European Court of Human Rights ruled by a vote of eleven to seven that an attempt to force a journalist to reveal his source for a news story violated Article 105 of the European Convention on Human Rights. The case was about a journalist who wanted to publish a story based on confidential information he received concerning the financial difficulties of a particular company. The information was derived from the company’s confidential financial plan, and was presumably stolen.
In December 1994, the 4th European Ministerial Conference on Mass Media Policy of the Council of Europe adopted a Resolution on Journalistic Freedoms and Human Rights. 8 Principle 3(d) provides that the protection of the confidentiality of journalists’ sources enables journalists to contribute to the maintenance and development of genuine democracy.
In 1993, European Parliament (EP) passed The Resolution of the European Parliament on Confidentiality of Journalists’ Sources and the Right of Civil Servants to Disclose Information which stated that it believed in “the right of confidentiality for journalists’ sources is an important factor in improving and increasing the supply of information to the public, and that this right in practice also increases the transparency of decision-making procedure, strengthening the democratization of the Community institutions and governmental bodies in the member States, and is inextricably linked to the freedom of information and the freedom of the press in the broadest sense lending substance to the fundamental right to freedom of expression, as defined in Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”
Conclusion
While, the Supreme Court had made a general observation in terms of protecting journalists’ sources, it was with regards to the alleged snooping in their phones that could have compromised their sources and put them in a place of danger. As the revelation of sources in this case would indicate that the sources were being revealed to government agencies, as had been alleged.
The ruling of the Delhi Metropolitan Magistrate suggesting that CBI enforce the revealing of the source’s identity was in the interest of carrying out an investigation where a document relating to an ongoing investigation was leaked. There may appear to be two sides to this. Any investigative journalist in criminal matters will have an insider source, who if revealed, will be reluctant to assist the journalist to retrieve information and if penalized, it will be a deterrent and no “official sources” will ever speak to any journalist fearing reprimand from investigating agencies. While the issue needs determination on a case-to-case basis, in the interest of justice, and needs to be interpreted judicially, any broad diktat could seriously harm freedom of expression that includes the right to investigative and independent journalism.
In a democracy like India, the freedom of press has been secured and safeguarded by courts over and over again for years. Since the Press is considered to be the fourth pillar of democracy, to allow them to freely do their jobs is sacrosanct to maintain this freedom. Hence, it is important to read into the Supreme Court’s observations in the Pegasus matter.
However, taking into consideration the law Commission’ report which left it to the discretion of the court to consider this on a case-to-case basis, the ball is again in the “court”. While the report did recommend insertion of an exception to journalists in the Indian Evidence Act, the recommendation about giving courts discretion is contrary to the former recommendation.
Weighing in on the Supreme Court’s order, the Law Commission Report and the example of International Court (which dealt with a private company’s leaked information), it may be concluded that while journalists need immunity from revealing their sources for the most part, on occasion, if the interest of justice in a particular instant arises, the decision may be up for judicial intervention in the absence of any specific statutory exception in this regard.
An absolute protection of journalist’s sources could also become detrimental to criminal justice. In the instance of leakage of copy of charge sheet in the Delhi violence case 2020, the Additional Sessions Judge Amitabh Rawat, Karkardooma addressed the “disturbing trend” of reporting exact contents of charge sheet calling it unjustified. The court said that if the charge sheet is reproduced as it is, even before the court has taken cognisance the question of leakage obviously arises. Before the court, the counsel appearing for Pinjra Tod members Devangana Kalita and Natasha Narwal submitted that TV channels and newspapers were quoting the charge sheet in their reports. He cited a Times Now report where sections of the supplementary charge sheet were quoted and he added that the police were leaking the same to the media.
The Delhi Court, in the same matter, had pulled up Delhi Police was not being able to identify who leaked the supplementary charge sheet to the media. However, the news channel that showcased the copy of chargesheet were not brought into the dock, thus leaving the jurisprudence in regards to revealing journalistic sources has been left in a vacuum, in this case particularly.
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